GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GRAHAM BARCLAY OYSTERS PTY APPELLANTS LIMITED & ANOR
AND
GRANT RYAN AND ORS RESPONDENTS
Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54
5 December 2002 S258/2001
ORDER
1. Appeal by Graham Barclay Oysters Pty Ltd allowed in so far as it concerns the issue of negligence.
2. Appeal by Graham Barclay Distributors Pty Ltd allowed with costs.
3. Parties to have 28 days to file draft minutes of consequential orders to be made by this Court in respect of the orders (including costs orders) made by the Full Court of the Federal Court.
4. In default of agreement between the parties to this appeal as to the form of the draft minutes for that appeal, each party is to file within the 28 day period its draft with short written submissions in support, indicating how the drafts of the parties differ.
On appeal from the Federal Court of Australia
Representation:
C R R Hoeben SC with A P Coleman for the appellants (instructed by PricewaterhouseCoopers Legal)
T K Tobin QC with J B R Beach QC and B M Zipser for the first named first respondent (instructed by Slater & Gordon)
No appearance for the second to seventh named first respondents
W H Nicholas QC with T G R Parker for the second respondent (instructed by Coudert Brothers)
B W Walker SC with P W Taylor SC and M J Windsor for the third respondent (instructed by Crown Solicitor for the State of New South Wales)
Intervener:
R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GRANT RYAN APPELLANT
AND
GREAT LAKES COUNCIL AND ORS RESPONDENTS
Ryan v Great Lakes Council
5 December 2002 S259/2001
ORDER
1. Appeal dismissed with costs.
2. Parties to have 28 days to file draft minutes of consequential orders to be made by this Court in respect of the orders (including costs orders) made by the Full Court of the Federal Court.
3. In default of agreement between the parties to this appeal as to the form of the draft minutes for that appeal, each party is to file within the 28 day period its draft with short written submissions in support, indicating how the drafts of the parties differ.
On appeal from the Federal Court of Australia
Representation:
T K Tobin QC with J B R Beach QC and B M Zipser for the appellant (instructed by Slater & Gordon)
W H Nicholas QC and T G R Parker for the first respondent (instructed by Coudert Brothers)
C R R Hoeben SC with A…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Case
[2002] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from decisions concerning claims of negligence arising from the consumption of contaminated oysters. The primary parties involved were Graham Barclay Oysters Pty Ltd and Graham Barclay Distributors Pty Ltd (the Barclay companies), who grew and distributed oysters, and Mr Ryan, who contracted Hepatitis A after consuming these oysters. The claims also involved the State of New South Wales and the Great Lakes Council, who were alleged to have failed in their statutory duties to control water pollution in Wallis Lake, where the oysters were grown.
The central legal issues before the High Court included whether the State and the Council owed a duty of care to individuals like Mr Ryan, particularly in relation to their failure to exercise statutory powers to control water pollution. The Court also had to determine whether the Barclay companies breached the duty of care they admittedly owed to Mr Ryan by harvesting and selling contaminated oysters. Furthermore, the Court considered the reasonableness of the Barclay companies' conduct in the face of a known risk of contamination and whether the exercise of statutory powers by the State and Council was justiciable and if a duty of care was owed to the class of persons who might be affected by such contamination. Procedural issues regarding the appropriateness of representative actions and declaratory orders were also relevant.
The High Court's reasoning focused on the scope of duties of care owed by public authorities and private entities. Regarding the State and Council, the Court found that neither owed a duty of care to Mr Ryan. This conclusion was based on an analysis of the statutory powers available to them and the class of persons to whom any such duty might be owed, finding that the general powers to control pollution did not extend to creating a specific duty to prevent individual harm from contaminated oysters. In relation to the Barclay companies, the Court considered the reasonableness of their actions in harvesting and selling oysters during the period of increased risk. While acknowledging the Federal Court's majority view that the resumption of commercial activity was a fairly open question, the High Court ultimately found that the Barclay companies did not breach their duty of care.
The High Court allowed the appeals of the Barclay companies in so far as they concerned the issue of negligence, and allowed the appeal of Graham Barclay Distributors Pty Ltd with costs. The parties were given 28 days to file draft minutes of consequential orders, including costs orders, to be made by the High Court.
Orders
Orders of the court
1. Appeal by Graham Barclay Oysters Pty Ltd allowed in so far as it concerns the issue of negligence.
2. Appeal by Graham Barclay Distributors Pty Ltd allowed with costs.
3. Parties to have 28 days to file draft minutes of consequential orders to be made by this Court in respect of the orders (including costs orders) made by the Full Court of the Federal Court.
4. In default of agreement between the parties to this appeal as to the form of the draft minutes for that appeal, each party is to file within the 28 day period its draft with short written submissions in support, indicating how the drafts of the parties differ.
Background
Background to the litigation
The issues in the appeal are whether the State or the Council owed a duty of care to Mr Ryan and whether the Barclay companies breached the duty of care that they admittedly owed to Mr Ryan. In my opinion, neither the State nor the Council owed a duty of care to Mr Ryan and the Barclay companies did not breach the duty of care they owed to him.Factual background In December 1996 and early January 1997, Mr Ryan and his family consumed oysters purchased from Barclay Distributors Pty Ltd. The oysters were grown in the Wallis Lake in New South Wales. In late January 1997, Mr Ryan began to feel unwell. Blood tests revealed that he was suffering from the hepatitis A virus ("HAV"). The Department of Health reported that notifications of HAV began to increase in the week commencing 20 January 1997, peaking on 3 February 1997. By 10 February 1997, the Department had established a link between those infected with HAV and the consumption of oysters grown in the Wallis Lake. A New South Wales government taskforce ultimately attributed 444 cases of HAV to the consumption of oysters grown in the Lake.HAV and oysters HAV is spread by the "faecal-oral route" − it is contracted when humans ingest material contaminated with human faeces which contains the virus. It can only be transmitted through human faeces. HAV has an incubation period of between 15 and 50 days; most cases of infection occur within 30 days of contact. It is a resilient virus that can survive in the environment for periods of three months or longer. Oysters are filter feeders, processing 10 to 20 litres of water per hour by sucking water in and excreting particles through the oyster's normal digestive processes. Some particles, including those that contain HAV, are retained while others are excreted. HAV does not attack oysters; ordinarily the virus is retained in the oyster's flesh. Viral contamination of the oyster is likely to be at a level of concentration that far exceeds the concentration of the virus in the water.The geographic region Wallis Lake is the largest oyster growing area in New South Wales. Although oysters have been grown in the Lake for nearly a century, there was no record of HAV contamination before the outbreak in late 1996. Occasionally, however, faecal contamination occurred in the Lake. The catchment area of the Lake includes the major towns of Forster and Tuncurry, various smaller townships and homes built along the rivers and countryside but which are not part of any township. Sixty-five percent of the area of the Lake is within the boundaries of the Great Lakes Council. Faecal waste from septic tanks and treatment sites could escape at numerous points within the Lake's catchment area and enter the Lake through storm water drains. During the period 1989-1993, the Council occasionally detected faecal contamination when testing water in the Lake. It did no testing in 1996. Faecal waste was more likely to enter the Lake after periods of heavy rainfall. Between 23 and 25 November 1996 − shortly before the HAV outbreak occurred − heavy rain fell in the Lake catchment area. Methods of avoiding oyster contamination
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON J
HUGH J
A judgment as to the reasonableness of the conduct of the Barclay companies in response to the risk of contamination required an evaluation of "the magnitude of the risk and the degree of probability of its occurrence". It also required an examination of "the expense, difficulty and inconvenience" of the available alternatives. For practical purposes, the alternative was a cessation of harvesting for an indefinite period, or for the remainder of the harvesting season, of the kind that ultimately occurred on 14 February 1997. When Lindgren J said that the alternative was "to cease business", or "to suffer a closure of their business until somehow they could be completely assured that they were putting into the market a product that was free from defects", he can hardly have been referring to something different from that which was done by all growers of Wallis Lake oysters on 14 February 1997. By that time of course, viral contamination was no longer merely a risk; it was an established fact. Even so, the temporary cessation of harvesting in November 1996 was a response to a recognised increase in the risk of contamination. It was followed by a resumption of harvesting and selling over the Christmas and New Year periods. The critical question for the Federal Court was whether, in the light of what was known about the nature and degree of the risk of contamination, that resumption of commercial activity was reasonable. I am not persuaded that any of the four judges in the Federal Court misunderstood, or failed to address, that question. The answer given by the majority was fairly open. Lindgren J answered the question differently; but I am not persuaded that the majority view involved clear error or injustice.Conclusion I would dismiss the appeals of the Barclay Companies (No S258/2001) and of Mr Ryan (No S259/2001) with costs. I would allow the appeal of the State (No S261/2001) with costs. I agree with the concluding paragraph of the orders proposed by Gummow and Hayne JJ. I agree with the orders proposed by Gummow and Hayne JJ and with their Honours' reasons. There is, however, one matter upon which I would make separate comment. That matter concerns the relationship between certain specific obligations cast upon a corporation by the Trade Practices Act 1974 (Cth) ("the Act") and the general law of negligence. For present purposes it is sufficient to refer to two provisions of the Act upon which Mr Ryan relied unsuccessfully at first instance. The first is s 52(1) which provides:" A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."Pursuant to s 82 of the Act, a person who suffers loss or damage by conduct that contravenes certain provisions of the Act, including s 52(1), is entitled to recover the amount of that loss or damage. The second provision of the Act which invites attention is s 75AD, which is in Pt VA of the Act. That Part is concerned with the liability of manufacturers and importers of defective goods. "Manufactured" is defined in s 75AA to include "grown, extracted, produced, processed and assembled."